EMMETT J:
1 On 18 February 2000 the Court, constituted by Black CJ, Sackville J and myself, dismissed three appeals in proceedings N 1178, N 1179 and N 1180 of 1999. All three appeals brought by John James Price relate to the issue of search warrants by the first respondents in those proceedings. Each of the first respondents submitted to such order as the Court saw fit to make, other than orders as to costs. The effect of the dismissal of the appeals is that there would be no impugning of the issue of the search warrants and their execution could then be completed.
2 Documents have been seized pursuant to the warrants. However, those documents are still subject to restrictions as to access by the Federal Police, at whose instigation the search warrants were issued. On 1 October 1999 undertakings were given on behalf of the second and following respondents, who are Federal Police officers, that no attempt would be made to gain access to the documents seized in purported execution of the warrants. After delivering the reasons for dismissing the appeals on 18 February 2000, I ordered that the undertakings be released with effect from next Friday, 25 February 2000. I now have before me applications by the appellant for injunctions restraining access to the documents, pending the making of applications to the High Court of Australia for special leave to appeal from the orders of the Full Court.
3 Four considerations would be taken into account by the High Court in deciding whether to grant such an injunction, pending the determination of any application for special leave and any appeal (see Malubel Pty Ltd v Elder (1998) 73 ALJR 135). Those considerations are as follows:
- Whether there is a substantial prospect that special leave to appeal will be granted, or that there is a not insubstantial prospect of special leave being granted;
- Whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending;
- Whether the grant of a stay will cause loss to the respondent; and
- Where the balance of convenience lies.
4 Those considerations are, of course, relevant for the High Court. However three of those, it seems to me, are applicable in any application made to this Court. The second consideration is clearly not relevant to this Court, since that will be satisfied by this application.
5 There are, in effect, two questions, which are similar to the questions that arise when any application is made at first instance for an interlocutory injunction, pending the making of final orders in a suit. Those questions are normally formulated as whether or not there is a serious question to be tried and if so, where the balance of convenience lies. That is to say, if the applicant were entitled to the relief sought and failed to get the relief on an interlocutory basis, would the prejudice to the applicant be greater than the prejudice to a respondent, against whom the remedy should not be ordered, but against whom interlocutory relief is granted.
6 Looking at that second question as it arises in the present context, it seems to me that the question can be posed in this way. If this application is dismissed, yet the apellant succeeds in obtaining leave and succeeds in an appeal, there would be considerable prejudice. In effect, the appeal would be nugatory because the whole purpose of it is to restrain access to documents obtained by allegedly unlawful means. On the other hand, if an injunction is ordered and further delay occurs in the obtaining of access to the documents and leave is refused, or an appeal is dismissed, there will clearly be prejudice to the respondents. That prejudice is set out in paragraph 23 of the affidavit of Mr Seymour dated 22 December 1999:
"23. The most serious adverse effects of the delay resulting from the current proceedings include:
i. given the nature of the suspected criminal activity, being essentially making false applications for sales tax refunds, the business records of the company itself will be crucial to determining whether or not to proceed with criminal charges,
ii. apart from the evidentiary value of the documents themselves, they are likely to provide leads to other evidence both,
a. of a documentary nature, and
b. in relation to other potential witnesses.
iii. there is a very real concern that other material, the existence of which is presently unknown to police, will be lost or destroyed,
v. this concern also applies to witnesses who have already made statements but who may need to be reinterviewed after examination of the documents seized under warrant,
vi. further, the recollection of the witnesses yet to be identified, is likely to be inhibited, reducing their capacity to accurately recall associated events and to identify documents and or suspects,
vii. it is believed that the sequestered documents will also be relevant to at least six other investigations apart from the investigation into the activities of the appellant herein. Whilst I am cognisant of the need to maintain the confidentiality and integrity of these investigations, much of the material the subject of the proceedings will be fundamental to the course the investigations and any subsequent prosecution will take. These matters relate to the evasion of sales tax in the further sum of $20m,
viii. one of the investigations has proceeded to charging and committal. After a contested committal, Horty Mockbel was committed for trial in the County Court in Victoria on 19 November 1998 on one charge of defrauding the Commonwealth in the sum of $5,440,343.31, contrary to 29D Crimes Act 1914. It is alleged against Mr Mockbel that he fraudulently evaded sales tax in his dealings with one of the Applicant's companies, Computer Connection International Pty Ltd. ("CCI"). Mr Mockbel's trial is due to commence on 8 May 2000. It is believed that original documents which are required as evidence in the trial of Mr Mockbel, form part of the seized material. The prosecution is anxious to gain access to this material not only to tender during the course of the criminal proceeding, but for the purpose of forensic analysis which will be
ix. crucial to the way in which the case will be conducted. Having regard to these facts and noting the delays in undertaking forensic analysis, the conduct of the trial may be prejudiced and/or delayed,
x. the delay caused by the investigators inability to gain access to the documentation affords to the suspects in this and related matters, the opportunity to:
a. conceal or disseminate assets which may otherwise have been available for forfeiture in the event of the investigations culminating in the laying of criminal charges,
b. collaborate in producing alibis and to destroy evidence the existence of which is presently unknown to police,
c. interfere with known and potential witness (sic).
xi. the delay caused by the investigator's inability to gain access to the documentation may also prejudice the suspects insofar as the material injuncted may contained exculpatory evidence of an actual or derivative nature."
7 Thus, there is a balancing exercise to be undertaken. On the one hand, the consequences to the appellant would be that his appeal would be nugatory. On the other, there are fears, which are not specific, that the investigation and possible prosecution of offences might be prejudiced. Balancing those two questions, it seems to me that the absence of specificity in relation to the prejudice to the respondents marginally tips the balance in favour of the appellant. I should observe, of course, that the absence of specificity is probably not something that can be remedied by better evidence. Of necessity, the lack of access to the documents means that the assistance that might be obtained from them is unknown, except in general terms.
8 That leads me back to the other question, namely, whether there is a substantial prospect that special leave to appeal will be granted. That is, of course, something about which it is very difficult to speculate.
9 In effect there would be two appeals. The appeals in matters N 1178 and N 1180 of 1999 raised identical questions. It is possible that a different view could be formed as to the prospects of success in N 1179 of 1999, on the one hand and the prospects of success in N 1178 and N 1180 of 1999 on the other hand.
10 So far as the Fitzgerald appeal, N 1179 of 1999, is concerned it is suggested that there is a substantial prospect that the High Court might be prepared to grant leave, in order to consider the possible application of Hilton v Wells (1985) 157 CLR 57 in the present circumstances. The High Court has, of course, declined to revisit that decision (see Jones v Commonwealth (1987) 71 ALR 497).
11 Additional arguments were advanced on behalf of the appellant, by way of distinguishing the circumstances of this case, and the language of the legislative provision in question, from that after under consideration in Hilton v Wells (above). For the reasons delivered on 18 February 2000 the Full Court took the view that those considerations were not compelling. The matter is one in respect of which there may be some prospect of a grant of leave. However, I am not persuaded that there is a substantial prospect of the grant of leave.
12 In relation to the other appeals, the matter raised in argument on behalf of the appellant as being such as to attract a grant of leave, concerned the operation of section 3E(4) of the Crimes Act 1914 (Cth). That raised the question of whether, in the circumstances of the case, there had been a prior application. The Full Court was, of course, mildly critical of the practice about which evidence was given in the proceeding. Nevertheless, the Court concluded that in the circumstances, there was in fact no application, within the meaning of the section, prior to the occasion when the warrants were actually issued. Again, while I accept that there is some prospect of leave to appeal being granted, I would not characterise the prospect as substantial. Whether it would make any difference to characterise prospects by reference to double negatives, I am not sure. In any event, I am not persuaded that there is more than an insubstantial prospect of success in an application for leave to appeal. However, because of my view that there is at least some prospect, albeit not a substantial prospect, of success in a leave application, I would have been prepared to restrain access to the documents for a limited period of time, to enable the appellant to make an application to the High Court for an interlocutory injunction, pending the hearing of the leave application. I would have done so because of the absolute consequences of access being granted. That is to say, if access is granted, then the whole point of an appeal to the High Court would be negated.
13 In the course of argument, however, it was intimated on behalf of the respondents that an undertaking would be given in the terms presently operative, up to and including 4.00 pm on Thursday 2 March 2000. I am informed from the bar table that an application could be made to a justice of the High Court in Sydney this week, or in Canberra next week. It seems to me that there would be adequate time, without imposing any hardship on the appellant or any inconvenience on the High Court, for an application to be made by 4.00 on Thursday 2 March 2000. In the circumstances, I am not prepared to grant any injunction.
14 Accordingly, upon the respondents proffering such an undertaking I will dismiss the applications. I will order that the costs of this application follow the event of any application for special leave made by the appellant to the High Court.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.